from the promising-start dept

Techdirt has been following the rise of small, low-cost drones for some years. A major milestone was the release of the FAA's draft rules for the devices, which came out last February. Quartz has just published an interesting report of an FAA conference on the future uses of drones in US airspace, at which the following statistic was quoted:

Federal Aviation Administration director Michael Huerta told the gathered crowd that more than consumer 500,000 drones had been registered with the agency since December.

Quartz provides some context for the figure of half-a-million newly-registered drones:

According to the FAA, it took 100 years for about 320,000 regular aircraft to be registered with US officials -- a feat that drones have surpassed in a matter of months. Granted, even the largest consumer drone is far smaller than the average plane, helicopter or hot-air balloon, but it's an impressive statistic for an agency that has been criticized in the past for moving slowly on regulations that adapt to the growing uses for drones.

As that rightly notes, there's a world of difference between today's small drones -- "consumer" in this context means anything weighing more than 0.5lbs -- and traditional aircraft. But in many ways, it's exactly the same difference between the very first PCs, and the mainframes and minicomputer systems that had existed for decades. In that respect, we can see the 500,000 registered drones as an indication that we are now truly in the age of the PD -- the Personal Drone.

The conference also touched on a key concern raised by Karl Bode last year, who was worried that over-strict regulation of drones might kill off some promising new business models. Quartz reports:

Speakers discussed the potential for drone operations beyond the line of sight in the future. And the FAA is already testing out the feasibility of delivery services like this. Last month it approved a test by the drone delivery service Flirtey and 7-Eleven to deliver some snacks to a household in Arizona.

Combined with the sizable installed base of personal drones just revealed, that's a good sign for the future of the sector if it is to continue tracking the PC industry in terms of rapid growth.

from the urls-we-dig-up dept

The FAA hasn't exactly been quick to figure out how its going to regulate drones, and its current rules are a bit of an arbitrary mess of trying to determine what "commercial use" really means and how to register pilots and/or the UAVs they fly. Still, plenty of projects are moving forward with plans to use (semi-)autonomous robots to deliver packages more efficiently and quickly.

from the permission-based-innovation dept

We've been waiting forever for the FAA to finally come up with some sort of rules around public drone use in the US. Earlier this month we noted that the FAA had simply ignored the mandated deadline to put rules in place. And in the few cases where the FAA has said stuff, it's been ridiculous or just confusing.

However, reports are emerging that on Monday the Department of Transportation (which the FAA is a part of) will finally release some drone rules... and it's going to include the requirement that all drone purchases be registered with the government. Apparently this is separate from the FAA's rules, which still may not show up for a few years. While the details will matter, if the reports are accurate, that seems like a ridiculous, bureaucratic and cumbersome path to go down. While there are some fear mongering reports about errant drones flying in places they shouldn't, the vast majority of private drone use is not at all problematic. Demanding registration for every single drone, even the personal hobbyist kind, would seem like massive overkill that would likely decrease the usefulness and innovation in a very important emerging field of innovation. Also, it's not at all clear what this means for people who build their own drones (or want to).

At best, it will only serve to drive more of the best innovation out of the US, rather than enabling it to happen here. I'm sure, in typical regulator-think, the bureaucrats assume this is no big deal, because "it's just a registration," but it's still a form of friction that makes it more difficult and annoying to own drones, at a time when the market and the uses of the devices is still growing. I have no problem with using the law to go after people who use drones for illegal purposes in some way, but a registration-first system seems to assume that many uses will be illegal, and if they aren't now, it makes it much easier to criminalize lots of different uses.

This should come as no surprise. The FAA seems to be operating from the brainstem when it comes to regulating private drone use. Its previous rulings have been all over the place. On one hand, it recognizes the problems leaving this completely unregulated would pose. On the other, it seems unable to prevent itself from handing down horribly inconsistent rules.

Even Congress has recognized the FAA is unlikely to come up with a final set of drone rules any time soon.

In a report published then, lawmakers noted that they were "concerned that the FAA may not be well positioned to manage effectively the introduction of [drones] in the United States" and specifically noted that a missed deadline was likely.

The FAA honestly doesn't seem to know what it wants, at least not in terms of long-term guidance. Its stabs at rulemaking have been mostly on-the-spot determinations, each one more contradictory than the last. In 2014, it said delivering the game ball for kickoff at a college football game was not permitted, supposedly because it was "commercial use." Then it turned around and approved drone-mounted cameras for use by movie studios, something entirely commercial.

Here's a quick visual representation of how screwed up the drone rulemaking process is.

As of 2012, the FAA still forbade "commerical use" of drones. Almost two years later, another regulatory agency (the National Transportation Safety Board) pointed out that the FAA had -- nearly three decades earlier -- exempted model planes from its regulatory control. Seeing model planes as analagous to private (i.e., non-government) drones, the NTSB's administrative judge basically said the FAA can't claim control over any and all flying objects. Tacocopters were back in business. At the center of its decision was the fact that the FAA had no active policy on drone use. Its assertions that it should be able to regulate these flights was based on nothing more than the feeling it should be able to do this and an internal memo that had never made its way into the FAA's official policies.

Considering the ubiquity of the technology, it's hugely irresponsible for the FAA to handle this on a case-by-case basis, especially when this process results so often in contradictory rulings. The FAA is correct to err on the side of caution, but it seems unable to see past the dangers drones might pose to other air traffic. In doing so, it has turned its rulemaking process into the worst combination of immobilization and overreactions -- less of a regulatory agency than a catatonic being that responds quickly and violently to certain stimuli. There appears to be little rational thought guiding the process.

While its recent efforts have clarified at least some of the parameters governing private drone use, the rules are still severely limiting. That's its overabundance of caution at work. The FAA certainly doesn't want to be seen as somehow allowing the sort of actions that have given private drone use a public image problem -- like interfering with airborne firefighting operations… or being used as high-flying tools for vandalism.

What is clear is that Congress won't be pushing the FAA towards better rulemaking or holding anyone accountable for its lack of timely rulings. By the time the FAA ever gets around to issuing comprehensive guidelines, they'll already be out of date.

from the awwwwww dept

Perhaps, like me, you've never really understood the curious ban some airflights and airlines have had on mobile and electronic devices during flights, take-offs, and landings. Perhaps, like our Jefe, Mike Masnick, you've dismissed the requests from flight attendants that those devices be fully powered down out of hand, because you too are a rebel the likes for which this world is wholly unprepared. And maybe you too cheered when the FAA summarily dismissed these silly rules way back in 2013, thinking that the madness of a few moments without our favorite devices had finally come to an end.

But then, as you may know, the Association of Flight Attendants sued the FAA in order to retain the ability to lord over your smart-phones, tablets, and computers on flights. Notably, the AFA's filing made essentially zero claims having anything to do with the safety of electronic devices on the flights. Instead, their argument centered on whether the power to decide whether flight attendants could treat passengers like children who hadn't finished their vegetables resided with the FAA, or if the AFA should have some input.

In this case, it really does not matter whether Notice N8900.240 is viewed as a policy statement or an interpretive rule. The main point here is that the Notice is not a legislative rule carrying “the force and effect of law.” Perez, 135 S. Ct. at 1204. A legislative rule “modifies or adds to a legal norm based on the agency’s own authority” flowing from a congressional delegation to engage in supplementary lawmaking. Syncor, 127 F.3d at 95.

That's court-speak for "nice try, now go away." Of course the FAA can make changes to flight rules as it pleases and, when it comes to the use of devices the ban for which has always been cast in the light of flight-safety, an association for flight attendants ought to have about as much input as a doctor's receptionist should have on medical policy. This tantrum of a suit, which is all it ever was, has been dismissed and we are finally free to play Angry Birds during takeoff. Free at last, free at last.

More seriously, it's somewhat nice to see some aspect of security theater being done away with regarding anything to do with airplanes and flights. If we could just take this same tact with the rest of airport security, we'd be making a world of improvements.

from the urls-we-dig-up dept

We've talked about all kinds of drones before and about the FAA restrictions on using the more toy-like versions outdoors. Sometimes people do stupid stuff with drones -- and it really doesn't help to create an environment where people can enjoy drones responsibly. However, people will always do stupid things, and we can't let the jerks ruin it for the rest of us.

from the don't-get-left-behind dept

As Techdirt has reported, the FAA is being strangely unhelpful when it comes to authorizing commercial drone use. In that article, Mike warned that this might lead to other countries moving ahead in this fast-developing area, and he was right: the EU body for air safety, the European Aviation Safety Agency (EASA), has now presented its regulatory approach for drones. It is based on three categories of operations and their associated regulatory regime: open, specific and certified (pdf):

The Open operation category of drones, should not require an authorisation by an Aviation Authority for the flight but stay within defined boundaries for the operation (e.g. distance from aerodromes, from people, etc). The "specific" operation category will require a risk assessment that will lead to an Operations Authorisation with specific limitations adapted to the operation. The "certified" operations will be required for operations with a higher associated risk or might be requested on a voluntary basis by organisations providing services such as remote piloting or equipment such as "detect and avoid".

As the EASA paper quoted above points out, in addition to safety, privacy and data protection are other important areas that need to be addressed. The new EU framework envisages this being dealt with by legislation at a national, rather than European, level. The paper has some suggestions for how this might be done:

The risk regarding privacy (data protection) could be mitigated through the operators self-registration in a web based application maintained by the local authorities. Another solution would be to install chips/Sim cards in drones. Such a web based application or chip/Sim cards could also contribute mitigating the security risk.

The paper also has some interesting thoughts on imminent challenges:

While today flying a single drone in non-segregated airspace with cooperative aircraft can be done with appropriate coordination and special procedures, operation of several of them possibly with non-cooperative aircraft will be much more complicated and will require additional measures. The concept of operations will need to be further developed to address the issues related to operations of fleet of drones in the non-segregated airspace. These operations of fleet of drones will pose new challenges not yet explored with manned aircraft operations.

from the boom dept

This is big news. Wikimedia Foundation, the organization behind Wikipedia, has announced that it is suing the NSA (with help from the ACLU) over its mass surveillance program. While the full lawsuit hasn't yet been posted, the lawsuit targets the "upstream" collection under Section 702 of the FISA Amendments Act. Because this gets confusing if you're not spending a lot of time with this, let's break out some of the different surveillance programs:

Section 215 of the PATRIOT Act: Under this program the NSA is collecting all the phone metadata on calls in the US.

Executive Order 12333: This is what enables the NSA to hack into pretty much anything overseas -- including things like Google, Yahoo and Microsoft's data centers.

PRISM: Actually part of Section 702 of the FISA Amendments Act. Allows for (slightly) targeted collections of information via a court order from the FISA Court, demanding specific types of information (rather than "all" information).

Upstream collection: Also under Section 702, but this is the program that lets the NSA tap into backbone fiber optic cables, such as from AT&T and others, and slurp up all traffic in case there's anything "interesting" happening that it can classify as "foreign intelligence information."

It's the upstream collection that Wikimedia is challenging in this lawsuit, arguing (among other things) that it violates both the First and Fourth Amendments.

That upstream program is the one that was first disclosed by Mark Klein, a former AT&T technician who wandered into the EFF's offices a decade ago with the evidence. This resulted in a lawsuit -- Hepting v. AT&T -- that AT&T was able to get out of thanks to Congress passing a law granting the telcos retroactive immunity for helping the NSA. The EFF has a long-running similar case against the NSA over the upstream collection -- Jewel v. NSA -- which recently suffered a setback, in that the judges claimed there wasn't evidence for "standing." That is, the plaintiffs need to be able to prove that they were spied on -- which is a fairly tough barrier.

Another case that was filed on similar grounds, by Amnesty International (also with the ACLU), also lost at the Supreme Court on the question of "standing." However, as it later came out, that victory was based mostly on a false statement from Solicitor General Donald Verrilli, who had argued that if the US government made use of any of the upstream collection data in a lawsuit against someone, the government would need to reveal it to the defendants, who would then have standing to challenge it. Only later -- thanks to a Senate speech from Senator Dianne Feinstein -- did it come out that the DOJ regularly made use of information collected this way without ever alerting the defendants about how the information was collected.

Wikimedia thinks that it has a chance to get past this "standing" hurdle, thanks to the following NSA slide that was leaked in the Ed Snowden revelations:

See that big Wikipedia logo? That seems to be the NSA admitting that it's spying on Wikipedia users.

The 2013 mass surveillance disclosures included a slide from a classified NSA presentation that made explicit reference to Wikipedia, using our global trademark. Because these disclosures revealed that the government specifically targeted Wikipedia and its users, we believe we have more than sufficient evidence to establish standing.

The harm to Wikimedia and the hundreds of millions of people who visit our websites is clear: Pervasive surveillance has a chilling effect. It stifles freedom of expression and the free exchange of knowledge that Wikimedia was designed to enable.

During the 2011 Arab uprisings, Wikipedia users collaborated to create articles that helped educate the world about what was happening. Continuing cooperation between American and Egyptian intelligence services is well established; the director of Egypt’s main spy agency under President Abdel Fattah el-Sisi boasted in 2013 that he was “in constant contact” with the Central Intelligence Agency.

So imagine, now, a Wikipedia user in Egypt who wants to edit a page about government opposition or discuss it with fellow editors. If that user knows the N.S.A. is routinely combing through her contributions to Wikipedia, and possibly sharing information with her government, she will surely be less likely to add her knowledge or have that conversation, for fear of reprisal.

And then imagine this decision playing out in the minds of thousands of would-be contributors in other countries. That represents a loss for everyone who uses Wikipedia and the Internet — not just fellow editors, but hundreds of millions of readers in the United States and around the world.

Given how much difficulty other cases have had in establishing standing, it appears that this may still be a challenge here. However, the fact that the US government effectively misled the Supreme Court last time around at least suggests that maybe it will be open to revisiting the issue this time around.

Kudos to Wikimedia for stepping up to the challenge, and to the ACLU for not giving up on this issue.

"The proposed rules "are more progressive than we expected," said Michael Drobac, executive director of the Small UAV Coalition, a trade group that represents drone makers, including Amazon.com Inc. and Google Inc. "But once you spend some time looking at them, some of the things proposed would be devastating to the future of the industry."

According to the FAA fact sheet and the actual rules (pdf), the rules require direct line of sight (read: a human on the ground) and forbid nighttime use:

"Specifically, the FAA is proposing to add a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for routine civil operation of small UAS in the NAS and to provide safety rules for those operations. Consistent with the statutory definition, the proposed rule defines small UAS as those UAS weighing less than 55 pounds. To mitigate risk, the proposed rule would limit small UAS to daylight-only operations, confined areas of operation, and visual-line-of-sight operations."

The rules also note that drone users can't fly their drones faster than 100 mph, or higher than 500 feet. Drones also can't be flown over major population masses, which outlaws pretty much all operation in most urban environments. While a lot of hobbyist uses remain unimpaired, once you start to add up the restrictions it becomes clear that the proposed rules pretty much ban any of the drone delivery ambitions held by companies like Amazon or Google. Commenting to The Guardian, Amazon was quick to threaten that they'll just take their Amazon drone delivery ambitions to countries with more progressive drone rules in play:

"The FAA needs to begin and expeditiously complete the formal process to address the needs of our business, and ultimately our customers," Paul Misener, Amazon vice-president of gobal public policy, said in a statement to the Guardian. “We are committed to realising our vision for Prime Air and are prepared to deploy where we have the regulatory support we need."

I personally always thought Amazon's drone delivery ambitions had more than a small component of hot air, designed predominately to help give the PR impression of intense innovation. I'm a tough sell on the practicality of urban drone delivery anyway; in my head I've always imagined a very dystopian Terry Gilliam-esque affair, where bands of hooligans construct increasingly elaborate steampunk slingshots to shoot down drones, street urchins then scurrying in rapt alleyway pursuit of Prime deliveries and pepperoni pizzas. Then again maybe I'm just being too cynical, and this cat and mouse criminality opens up an entire world of drone delivery security countermeasure-driven business models I've not even thought of.

Of course with the FAA banning night and urban use, we're talking about a lot more than just Google and Amazon's ambitions getting curtailed. Surveillance and the government's use of drones is also obviously a concern. Alongside the new rule proposals the White House issued Presidential memorandum requiring government agencies to detail the time and location of drone operations (though what loopholes are carved out for intelligence and law enforcement remains unclear). Drone operators that take taxpayer money will also need to clearly document what's being done with collected data.

It's worth reiterating that these are just draft rules and we've still got a public comment period that could extend the already-delayed drone rule making process another two years. By the time the public and companies get done hammering away at them over the next few years, we may actually wind up with rules far better than most people ever imagined.